A Bismarckian Moment: Charkaoui and Bill C-3

Bill C-3, an effort to remedy the core defects of the prior immigration security certificate regime, cobbles together a potentially half-hearted “special advocate” regime and converts immigration law into a de facto system of indefinite limits on liberty for foreigners. The new system will generate an inevitable series of new constitutional challenges, some of which may succeed at the Supreme Court unless the deficiencies of Bill C-3 are cured by careful innovation at the Federal Court level. This paper explores these contentions. Part II of the paper provides a brief overview of the immigration security certificate regime and the core Charkaoui holding on the question of fair hearings. Part III canvasses the various models of “special counsel” the Supreme Court suggested might satisfy constitutional requirements under section 1 of the Charter. Part IV examines the policy and political environment in which Bill C-3 was the n developed, the nature of Bill C-3’s response to the core findings of the Charkaoui decision and the law-making process in Parliament. Part V the n turns to other features of Bill C-3, noting both changes that will likely prove important and other areas that will likely create new controversies, including the question of indefinite detention. The paper concludes that Bill C-3 represents an unsatisfactory waypoint in — rather than an ultimate culmination of — protracted constitutional debates over security certificates

A Bismarckian Moment: Charkaoui and Bill C-3

Bill C-3, an effort to remedy the core defects of the prior immigration security certificate regime, cobbles together a potentially half-hearted “special advocate” regime and converts immigration law into a de facto system of indefinite limits on liberty for foreigners. The new system will generate an inevitable series of new constitutional challenges, some of which may succeed at the Supreme Court unless the deficiencies of Bill C-3 are cured by careful innovation at the Federal Court level. This paper explores these contentions. Part II of the paper provides a brief overview of the immigration security certificate regime and the core Charkaoui holding on the question of fair hearings. Part III canvasses the various models of “special counsel” the Supreme Court suggested might satisfy constitutional requirements under section 1 of the Charter. Part IV examines the policy and political environment in which Bill C-3 was the n developed, the nature of Bill C-3’s response to the core findings of the Charkaoui decision and the law-making process in Parliament. Part V the n turns to other features of Bill C-3, noting both changes that will likely prove important and other areas that will likely create new controversies, including the question of indefinite detention. The paper concludes that Bill C-3 represents an unsatisfactory waypoint in — rather than an ultimate culmination of — protracted constitutional debates over security certificates

Applying the New Burden of Proof: Lessons from the Canadian Experience

As a result of recent amendments to the UK Nationality and Borders Act asylum seekers will now have to establish certain facts to a balance of probabilities. This paper discusses the impact of those changes and drawing on the Canadian jurisprudence, which has applied the balance of probabilities standard to factual issues since 1989, distinguishes between those issues that have to be established to the higher balance of probabilities threshold and those for which the lower standard of risk, “the reasonable risk of persecution” should be used

Immigration and citizenship

552 h

The limits on a state's right to exclude and expel non-citizens under customary international and human rights treaty law

grantor: University of TorontoThe thesis is entitled “Limits on the State's Right to Exclude and Expel non-citizens under Customary International and Human Rights Law”. Its premise is that customary international and human fights treaty law have developed during the course of the last 50 years to a point where they now impose important limitations on state sovereignty with respect to the admission and exclusion of non-citizens. I argue that under customary international law the prohibition against refoulement or the forcible return of a refugee to a country to where he/she faces persecution is a principle of customary international law, as is the provision against the return of any person to a country where he/she faces a risk of torture. I also examine the International Covenant on Civil and Political Rights, the European Convention on Human Rights and the Convention Against Torture. Pursuant to these international human rights treaty laws, several principles which bind all signatories have emerged. These are: (1) Removal of any person back to a country where there is a risk of torture. (2) The prohibition also extends to the deportation of a person to a country where he or she is at risk of other forms of cruel and inhuman treatment. (3) By the same token, the deportation of a parent whose children are citizens of the country from which he/she is being deported is prohibited until the best interests of the children are taken into account. The best interests of the children must be given considerable weight. (4) Long term permanent residents who have grown up in the country in which they are residents have a fight to remain in that country and cannot be deported notwithstanding the interests of the state in removing them. I conclude by arguing that the most effective way of enforcing these rights is through the national courts. In Canada it is possible to use international human rights treaties as a tool for interpreting the Charter of Rights and Freedoms.L.L.M